Mini George v. State of Kerala & Others; Geetha N.S. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY ,THE 31ST DAY OF AUGUST 2018 / 9TH BHADRA, 1940** ## WP(C).No. 17395 of 2018 ## **PETITIONER/S:** **MINI GEORGE AGED 40 YEARS, W/O G.THOMAS, HIGH SCHOOLASSISTANT (HINDI), SANKARAMANGALAM HIGHERSECONDARY SCHOOL, KOTTARA, KOTTARAKKARA691 537,KOLLAM DISTRICT.** **BY ADV. DR. GEORGE ABRAHAM** ## **RESPONDENT/S:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**DEPARTMENT OF GENERAL EDUCATION,SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001.**| |**2**|**THE DEPUTY DIRECTOR OF EDUCATION**| ||**THEVALLY, KOLLAM-691 009.**| |**3**|**THE DISTRICT EDUCATIONAL OFFICER**| ||**KOTTARAKKARA, KOLLAM-691 537.**| |**4**|**THE MANAGER**| ||**SANKARAMANGALAM HIGHER SECONDARY SCHOOL,**| ||**KOTTARA,KOTTARAKKARA-691 537.**| ``` Wpc 17395/2018 & 17773/2018 ``` ## **-:2:-** ## WP(C).No. 17395 of 2018 **5 SMT. N.S.GEETHA HEADMISTRESS, SANKARAMANGALAM HIGHER SECONDARYSCHOOL, KOTTARA, KOTTARAKKARA-691 537,KOLLAM DISTRICT.** **BY ADVS. SRI.ARUN BOSE SRI.JOHN JOSEPH VETTIKAD SMT. THARA THAMBAN SRI. B. BIPIN SRI. C. JOSEPH JOHNY SRI. M.V. THAMBAN SRI. R. REJI** ## **OTHER PRESENT:** **SMT.NISHA BOSE SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.08.2018, ALONG WITH WP(C). 17773/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ``` Wpc 17395/2018 & 17773/2018 ``` ## **-:3:-** ## J U D G M E N T The dispute in these writ petitions pertains to a claim to the post of head teacher of the institution raised by Smt.Mini George, the petitioner in W.P. (C).No.17395/2018 which became vacant on 1.4.2011 consequent upon retirement of the then head teacher. The Government considered the revision filed by Mini George pursuant to the direction of this Court in W.P. (C).No.37714/2017. Mini George's claim has been upheld by the Government. Seeking implementation of the said government order, Mini George filed W.P. (C).No.17395/2018. Challenging the order of the Government, Smt.Geetha N.S., the current head teacher filed W.P.(C).No.17773/2018. In view of the common issues involved in both the writ petitions, it is proposed to dispose both the writ petitions by a common judgment. ``` Wpc 17395/2018 & 17773/2018 ``` ## **-:4:-** 2. As on 1.4.2011 Mini George was not qualified to be promoted as head teacher. Mini George commenced her service as H.S.A with effect from 27.7.2000 on acquiring teaching experience of 12 years thereby becoming eligible to be qualified and to be promoted as head teacher only on 27.7.2012. 3. Geetha N.S. was appointed as H.S.A. with effect from 24.7.1997. She availed leave without allowance on 21.6.2006 to 20.6.2010. If the seniority is reckoned with reference to the date of entry into service, no doubt, Geetha N.S. is senior to Mini George. The dispute has arisen in the context of Rule 44A of Chapter XIV A Kerala Education Rules, 1959. The above Rule stipulates that minimum service qualification for appointment as headmaster in aided schools shall be 12 years of continuous graduate service with other requisite qualification. The dispute is whether Geetha N.S. is having 12 years of continuous graduate service or not. If her period involving leave without allowance can be reckoned for determining continued service there may not be any difficulty to hold that she is eligible and entitled to have been appointed as the head teacher of the school. ## **`Wpc 17395/2018 & 17773/2018`** ## **-:5:-** 4. Mini George expressed no objection in promoting Geetha N.S. as per letter dated 1.4.2011. According to Mini George, that no objection certificate was issued since none was qualified at that time. In terms of Rule 45C of Chapter XIV A, if there are no qualified hands available to be promoted as headmaster, a temporary promotion can be effected by promoting the senior-most teacher on the staff of the school till replaced by qualified hands. According to Mini George, Geetha N.S. will acquire 12 years graduate service only on 21.6.2022. 5. The learned counsel for Geetha N.S. challenged the government order on three grounds, vis-a-vis, (i) leave without allowance will have to be reckoned as a part of continuous graduate service; (ii) Mini George had relinquished her claim and; (iii) there is delay in raising the claim for promotion. I shall examine the challenge made by Geetha N.S. 5.i. Point No.i.:Admittedly, Geetha N.S. availed leave without allowance from 21.6.2006 to 20.6.2010. Rule 44A of Chapter XIV A stipulates minimum service qualification for appointment as headmaster which shall ## **`Wpc 17395/2018 & 17773/2018`** ## **-:6:-** be 12 years of continuous graduate service. Explanation.I refers to 'graduate service'. This inclusive definition of graduate service means to include all service of a teacher as High School Assistant, Training School Assistant, Headmaster of an incomplete High School, Headmaster of a complete Upper Primary School/Middle School or Headmaster of Training School after acquisition of requisite qualification. This would show that much emphasis is given to the experience of a teacher. The word 'continuous' as referable under Rule 44A therefore, has to be understood as 'continuous experience as a teacher'. Thus, if there is any broken period, that cannot be reckoned for the purpose of qualification. The head teacher has a pivotal role, his experience and understanding acquired through the efforts over the years makes him eligible to be appointed as head teacher. His decisions would have an impact on running of the institution, any progress or regress would also depend upon his decision. Long years of experience would make him as a commander of the institution. A learned Single Judge of this Court in Sreedevi Amma v. Radha Devi [2005 KHC 710] with reference to Rule 56(4) ``` Wpc 17395/2018 & 17773/2018 ``` ## **-:7:-** of Chapter XIV A had taken a view that the period involved as leave without allowance can be reckoned for the purpose of seniority. A Division Bench of this Court in Nirmaladevi V. v. State of Kerala and Others [2009 KHC 1340] with reference to Rule 56 of Chapter XIV A also had upheld the claim for seniority for promotion of a person, who availed leave without allowance. In both the above matters, there was no occasion to consider the impact of leave without allowance on continuous graduate service as referred under Rule 44A. The Full Bench of this Court in Shaji Sanjayi Nottithodi v. Managing Director, KSRTC and Others [2017 (3) KHC 631 (FB)] held that an employee, who rejoined duty after availing leave without allowance for taking up employment elsewhere would loss cadre seniority. The Apex Court in V.B.Prasad v. Manager, P.M.D.U.P School and Others [2007 (2) KHC 534] referring to Rule 45 of Chapter XIV A held that a person, who is on study leave does not gain teaching experience and therefore, such leave cannot be counted for reckoning experience as envisaged under Rule 45. Another Division Bench of this Court in Rajamma v. St.George High School [2012 (3) KLT 137], after ## **`Wpc 17395/2018 & 17773/2018`** ## **-:8:-** referring to Rule 44A Chapter XIV A, held that broken period of service rendered in same school or any other school in a leave vacancy cannot be clubbed as a part of regular service to make it part of continuous service for considering minimum service of 12 years service for appointment as headmaster. In the light of the judgments as above, and the statutory provisions under Rule 44A Chapter XIV A, I am of the considered view that the period involved in leave without allowance cannot be reckoned as part of continuous service as a qualification to be promoted as headmaster. 5.i. Point No.ii.:This is about the relinquishment of the claim to the post of head teacher made by Mini George. Mini George had expressed no objection in promoting Geetha N.S. on 4.4.2011. There are two aspects to be considered in this regard; one is about the principles relating to waiver and; the other is about Rule 45C of Chapter XIV A which speaks about temporary promotion. If there are no qualified hands the question of waiver would arise when somebody else has a right . There is no dispute to the fact that Mini George was also not eligible to be appointed as head ## **`Wpc 17395/2018 & 17773/2018`** ## **-:9:-** teacher when the vacancy arose on 1.4.2011. If Mini George could have relinquished her right which would arise in future, it can very well be said that she had waived her right to be promoted. Further, the Principles of Waiver are of no avail to legitimize promotion of an ineligible person. No objection expressed by her for promoting Geetha N.S therefore, has to be understood in the context of Rule 45C. The said Rule states that in any aided school, if a qualified teacher is not available to be promoted as headmaster, the senior-most teacher can be temporarily promoted till replaced by a teacher, who becomes entitled to be promoted. When Geetha N.S. is not eligible to be promoted, Mini George, was also not eligible to be promoted at the time of occurrence of vacancy, but the latter had given her no objection in effecting temporary promotion. Therefore, it can be concluded that no objection expressed by Smt.Mini George at the time of occurrence of vacancy would not hold against her when she becomes eligible to be promoted as head teacher. No question of waiver would arise, when somebody has no right. Relinquishment of ``` Wpc 17395/2018 & 17773/2018 ``` ## **-:10:-** own right would arise only when somebody possesses a right. 5.iii. Point No.iii:Much arguments have been raised by the learned counsel Shri M.V.Thampan in regard to the delay involved. He referred to the judgment of the Hon'ble Supreme Court in Bajwa v.State of Punjab [1999 KHC 281] and the judgments of the Division Bench of this Court in Pavithran V.K.M. and another v. State of Kerala and Others [2009 (4) KHC 4] and the judgment of the learned Single Bench of this Court in Jayasree V.V. v. State of Kerala and Others [2014 KHC 517]. No doubt, a crystalized right cannot be unsettled after many years and delay would frustrate the relief which one would be entitled to otherwise. I would have rejected the claim of Mini George, if Geetha N.S. is eligible otherwise to hold the post of head teacher as on the date of claim made by Mini George. Mini George raised her claim for the first time only on 23.10.2017 by filing revision petition before the Government. Geetha N.S. even today is not entitled to continue in the post of head teacher. She would be eligible to hold the post only in the year 2022. If her right to continue in the post can be questioned on ## **`Wpc 17395/2018 & 17773/2018`** ## **-:11:-** eligibility is available even now, I must say that the reliefs sought cannot be rejected on the principles of laches or delay. Since Geetha's right to continue in the post had not been crystalized, the cause of action still available to challenge her continuation as head teacher. Therefore, delay cannot frustrate the relief against her. The continuation of Geetha N.S. in the post being irregular, the Government is perfectly justified in granting relief to Mini George. The writ petition filed by Geetha N.S. is dismissed and accordingly, the writ petition filed by Mini George is allowed. Mini George shall be given notional promotion as head teacher with effect from 27.7.2012 and shall be appointed as head teacher forthwith. She would be eligible to count her service as head teacher with effect from 27.7.2012 except for salary. It is made clear that the salary paid to Geetha N.S. during her tenure as head teacher shall not be recovered. No costs. Sd/- ## A.MUHAMED MUSTAQUE, JUDGE ms ## **`Wpc 17395/2018 & 17773/2018`** ## **-:12:-** ## WP(C).No. 17395 of 2018 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE CERTIFICATE IN ACCOUNTS TEST (LOWER) DATED 13.8.2010.** **EXHIBIT P3 TRUE COPY OF THE CERTIFICATE OF TEST IN KERALA EDUCATION ACT AND RULES DATED 13.8.2010.** **EXHIBIT P4 TRUE COPY OF THE REVISION SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT.** **EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN 37714/17. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 19.5.2018.** **EXHIBIT P7 TRUE COPY OF THE REQUEST MADE BY THE PETITIONER TO THE MANAGER AS WELL AS TO THE DISTRICT EDUCATIONAL OFFICER DATED 21.5.2018.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R5 A** TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 1.4.2011. **EXHIBIT R5 B** TRUE COPY OF THE COMPLAINT TO THE DEPUTY DIRECTOR (EDUCATION), KOLLAM ON 1.8.2017. **EXHIBIT R5 C** TRUE COPY OF THE HEARING NOTE DATED 4.5.2018. ``` Wpc 17395/2018 & 17773/2018 ``` ## **-:13:-** ## WP(C).No. 17395 of 2018 ## **EXHIBIT R5 D** TRUE COPY OF THE ORDER NO.B6/2442/2018 DATED 11.6.2018 ISSUED BY THE D.E.O, KOTTARAKKARA. \\TRUE COPY// PS TO JUDGE ## **ms**